UPDATE: New York Judge Tries to Silence Twitter in Its Ongoing Battle to Protect User Privacy

UPDATE: This morning, rather than face contempt charges, Twitterhanded overthe data requested by the government, under seal, to the New York Criminal Court. Twitter was faced with a terrible choice between giving ground on its fight for user privacy, or risk a potentially expensive contempt of court citation. According to reporters at the hearing, Judge "Sciarrino said Friday that he will keep the records sealed at least until a Sept. 21 hearing." Hopefully this will give Twitter and Harris enough time to take this to a higher level court, and make sure that this Judge's dangerous decision gets a thorough review before it is too late.

Twitter's ongoing battle to demand that law enforcement request sensitive user information with a search warrant rather than a subpoena has taken a strange and dangerous turn. An ill-advised order from the judge presiding over the case means that either Twitter must disclose data without a warrant, or risk a potentially expensive contempt of court citation.

Unfortunately, Judge Sciarrino has now tried to stop Twitter's challenge to his order disclosing the information. First, he denied Twitter's request to delay disclosure until the case found its way through the appellate process. Then he threatened to hold Twitter in contempt of court if it didn't turn over the data to the government by Friday, September 14. And to put further pressure on Twitter, it ordered it to disclose its earnings statements for the last two quarters, in order to determine an appropriate fine. Of course, if Twitter were to disclose Harris' information to the DA, the privacy damage would be done. The government would likely argue that this moots the appeal, and use that as a basis to prevent the appeals court from ruling on the important legal issues.

Putting Twitter between a rock (turn the data over without a warrant) and a hard place (be held in contempt of court and face a potentially expensive fine) before the complicated legal issues at stake have been resolved by the appeals court is a miscarriage of justice. If Judge Sciarrino is worried that Twitter is making a mountain out of a molehill by continuing to press its challenge to the subpoena, the same has to be asked of the prosecutors who are using a misdemeanor disorderly conduct arrest that occurred more than a year ago as a pretense to obtain a wealth of information. The attempt to obtain this information from Twitter is to prove a point not even really contested: whether Harris was on the bridge during the protest.

This case was shaping up to be a constitutional showdown on a contested and unclear area of the law. Judges much higher up the judicial chain have been wrestling with the complicated issues brought about by the explosion of information turned over to third parties. In her concurring opinion in United States v. Jones, Justice Sotomayor of the U.S. Supreme Court wrote that she "would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." If a Supreme Court justice is thinking about the issues here, why would a state trial court force Twitter into a position where it has to abandon its court case seeking clarity or risk a massive fine in deciding to pursue its appeal? Some have already questioned whether Judge Sciarrino is the right judge to pass on this landmark case.

No matter what Twitter does, it will lose. At a time when companies need to feel empowered to stand up for user privacy, Judge Sciarrino's actions have made it difficult for Twitter to do that. We urge companies not to falter in the face of this setback, and continue to fight for the users.

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